2016 (11) TMI 345 - AT - Central Excise

Refund claim - valuation - assessable value - inter-connected undertakings - unjust enrichment - Held that - the refund, if any, filed would have to be subjected to the principles of unjust enrichment. I find the authorities below are confused on the eligibility of refund without verification of the fact whether the incidence of duty has been passed on to the customers or otherwise. The evidences, the appellant referred to in the Appeal paper-book even though submitted before the authorities below to ascertain whether the principles of unjust enrichment was attracted or not, but, the said evidences had not been examined. Therefore, in the interest of justice the matter needs to be remitted to the original authority to verify the aspect of unjust enrichment and decide the eligibility of refund accordingly. Needless to mention, a reasonable opportunity of hearing may be granted to the appellants - appeal allowed by way of remand.

Summary

Issues:
- Incorrect determination of assessable value leading to duty recovery
- Enforcement of demand barred by limitation
- Rejection of refund claim based on unjust enrichment

Incorrect determination of assessable value leading to duty recovery:
The appellant was issued a show cause notice for recovery of duty due to incorrect determination of assessable value in a transaction with an inter-connected undertaking. The duty was paid based on the transaction value with the undertaking, not at the market selling price. The demand was confirmed, and penalty imposed. The Commissioner (Appeal) upheld the case on merit but observed that the demand was barred by limitation. The appellant filed a refund claim after this order, which was rejected, leading to the present appeal. The appellant argued that the demand was not enforceable due to being barred by limitation, and the issue of refund was not considered by the Commissioner (Appeal).

Enforcement of demand barred by limitation:
The Commissioner (Appeal) had held that the demand was barred by limitation, making it unenforceable. However, a passing remark was made regarding the refund claim not being granted based on the principle of unjust enrichment. The appellant contended that the refund claim should be examined based on the criteria of unjust enrichment. They argued that the duty was paid on a higher value than the transaction value, and the duty incidence was not passed on to customers. The appellant provided a CA certificate to support this claim, which was not considered by the authorities. The Tribunal found that the issue of unjust enrichment needed further examination, and the matter was remitted to the original authority for verification and decision on the eligibility of refund based on unjust enrichment principles.

Rejection of refund claim based on unjust enrichment:
The Tribunal observed that the authorities below were confused about the eligibility of the refund claim without verifying whether the duty incidence had been passed on to customers. The evidences provided by the appellant were not examined to determine the application of unjust enrichment principles. The Tribunal allowed the appeal by remanding the matter to the adjudicating authority for a thorough examination of the unjust enrichment issue and a decision on the refund eligibility based on this principle. The appellants were granted a reasonable opportunity to present evidence on unjust enrichment for the adjudicating authority's consideration.